Recently representatives for BC Wildlife Federation (BCWF) met collectively with Ministers George Abbott, Barry Penner and Bill Bennett. BCWF had submitted a brief for their review which highlighted our members’ concerns with regard to the direction this government is taking generally in resolving many First Nations issues. This letter is a summary of those concerns and expresses the need for more balance in adjusting First Nations’ demands to the needs of all other citizens of the province.

We also appeal to you personally to become informed of matters that are now of critical importance to many British Columbians.

The courts, in a general fashion, usually accompanied by directions to negotiate balanced solutions, are defining aboriginal rights. These decisions are then loosely interpreted by the government and increasingly being applied to Crown Lands across the province. We should note, however, that these decisions are usually applied away from the eyes of the urban media.

It appears to BC Wildlife Federation that aboriginal rights only come from court decisions which may be the explanation why First Nations are constantly using the litigation option. Our government, on the other hand, seems to shun initiating this course of action. We fail to understand this apprehension on the part of government in light of the fact that most court decisions clarify First Nations rights and also for the most part, recognize and provide protection for the rights of all Canadians.

Access to lands and resources is becoming increasingly difficult for industry and the citizens of the province. For industry, it appears a patchwork has emerged of putting investment into resources where First Nations are favoured at a price. There is no faith in policies seen as constantly evolving and applied on a piecemeal basis. For the average citizen, there are no options. They have no input to the negotiations so that government understands their values; they have no funds to compensate First Nations for access to recreate and they have no ability

to suggest compatible solutions to complex issues of land and resource use.

In all of these scenarios, the average citizen of the province is excluded and, because of the “Lets Make a Deal” mindset, solutions are imposed that have no chance of benefiting the province or, sadly, First Nations.

We would remind all that the premise government put on the requirement for treaty negotiations was to develop and create “certainty.” The facts are that certainty on aboriginal rights comes only from court decisions. The current government course provides no certainty for either party and promotes a never-ending negotiations process even after final agreements are signed.

For government, reconciliation agreements are being struck that transfer shared decision making and revenues directly to First Nations. These revenues are part and parcel of the social fabric of the province. They pay for health programs, educational programs, highway building and other functions of government. We urge you to understand and determine the increasing long-term impacts that the loss of these revenues will have on the maintenance and support of the programs on which all British Columbians depend sustainability is critical for the future of our province. To what extent is the authority of the Crown being compromised in shared decision making agreements? Does “shared decision making” now confer a high level of recognition which invites conflict if not clarification in a high level legal challenge? Our legal advice is that the “shared decision” process in fact provides a veto for First Nations on any proposal to utilize public natural resources.

Indeed, is the province not avoiding resolution of provincial jurisdiction over public lands and resources by failing to get on with its appeal of the William decision?

Ultimately, as an elected MLA, you are part of government, accountable to your constituents and their questions and must be answerable not just to those constituents but to future generations of British Columbians.

In terms of the direction this government is taking regarding dialogue with First Nations for protocols, agreements and treaties, any opportunity for public involvement has been scrapped subsequent to the 2002 referendum. The development of government to government negotiations has unfortunately distanced the public who pay for all this process. We urge you to question the wisdom of supporting this exercise in alienation, not just in terms of individual political ends, but rather as a matter of conscience in being responsible for the social landscape

and future opportunities for all British Columbians.

We request you consider and appreciate that all sectors and citizens of this province deserve the same level of consultation as is currently given to First Nations surrounding land use decisions. We further request you actively bring suggestions forward with your colleagues in government that can include the public in some meaningful way in the development of agreements with First Nations.

Specifically, with respect to land use, BCWF is keenly interested in the decision making process that impacts our members’ access to fish and wildlife resources. The management of these resources has been traditionally based on science. Increasingly, it appears decisions are being made on political grounds that would give in to demands by First Nations for exclusive opportunities. Complaints by First Nations of infringement, not of any right but on an ability to harvest, seemingly need no basis in data or fact. Evidence of not harvesting sufficient to their

(First Nations’) needs doesn’t appear necessary for our Ministry to propose restrictions on residents completely devoid of conservation reasoning. We urge you to consider the risks to our fish and wildlife resource if management decisions are made for reasons of appeasing groups rather than on a scientific basis. We respectfully request your support when we bring these inconsistencies forward to our appropriate Ministers.

In closing, we wish to remind you that BC Wildlife Federation currently represents and enjoys the support of over 37,000 members throughout the province. These members are citizens who are outdoors people who recreate, hunt and fish often as family units. We draw to your attention that recreational fishing in this province generates in excess of $1.5 Billion for our economy each year. Angling also generates 17,400 jobs in this province every year. Hunting generates something in the order of another $500 Million and upwards of another 2,000 jobs.

Recreational angling in this province generates annually $115 Million to the provincial treasury and a further $170 Million to the federal treasury. Hunting contributes an additional $40 Million provincially and $50+ Million federally.

Access to lands and our fish and wildlife resources is important to these citizens as are all public resources to other British Columbians.

We respectfully urge you to consider the points we have raised here. The future of all British Columbians is very much a vision that must be analyzed by you personally in terms of a balance that assures ample opportunities for all.

It has been brought to the attention of BC Wildlife Federation that a number of Coastal First Nation Bands have formed a consortium going by the name of “Coastal First Nations”. See www.coastalfirstnations.ca for more information. Does this Coastal First Nations group represent all First Nations members along the entire Coast? Ordinarily we would not get involved in the business of First Nations people or their relationship with the BC Government; however in this case an effort is being made by the consortium to virtually eliminate residents’ long and established cultural right to hunt.

It is troubling to us that after speaking to numerous First Nations people living in Prince Rupert, no one was aware of the consortium or their efforts to end bear hunting on the North and Central Coast. In addition, none of the First Nations people we spoke with were opposed to bear hunting if it is done in a sustainable manner. In fact, some of the people we spoke with either hunted bears or had a family member who hunted bears.

The intent of this letter is to encourage you to ask a number of questions.

Have you been properly consulted by those who claim to represent your interest? It is our belief that First Nations people living on the North and Central Coast hunted bears traditionally for food, clothing and tool-making material. What right do those who claim to represent you have to restrict future generations of First Nations people from hunting bear?

Residents in British Columbia and Canada have a long history of hunting and trapping for fur and for meat. It is a part of our heritage and our culture stemming back to the early days of the Hudson’s Bay Company and before.

For the benefit of those that don’t know, we wish to explain how the Ministry of Environment establishes the annual allowable harvest of bears and how the hunts are managed.

The Ministry of Environment conducts random surveys along with identifying the different types of habitats available for bears. A population is established for each bear population area. There is a harvest percentage provided for each population unit. Hunting only occurs where the population can sustain a harvest over time. Hunting for bears can occur in either the spring or fall. Black bears are estimated at 120,000 to 160,000 animals in the province. White or blue coloured phases of black bears are not hunted.

Grizzly bears, because of their population numbers (approximately 16,000), are only hunted through Limited Entry Hunting for residents or quota system for non-residents. The current licensed harvest rate is approximately 2% of the population. Natural population recruitment is typically 6% – 8%.

There is a scientific, peer reviewed, Grizzly Bear Harvest Management Policy that guides all grizzly bear hunting opportunity. This strategy was developed by independent scientists not working for the Ministry. It has many special safeguards including vast no hunting areas to ensure that grizzly bears will not be over hunted as conservation is always the first priority.

It has been expressed by the “Coastal First Nations” consortium that they have an interest in pursuing commercialized bear viewing. Members of BC Wildlife Federation have concerns about this unregulated activity. We believe that all wild animals should remain wild and not become habituated or dependant on humans to live. Habituation means that an animal loses its instinct to avoid humans and no longer acts in a natural way or looses its ability to forage naturally. We have always commented that commercial bear viewing can occur but should not cause the habituation of any animals. The habituation of bears leads to their inevitable demise. For example, a habituated bear who wanders into a schoolyard because it has become accustomed to human interaction, or looks for easy food, becomes a public safety issue and will be destroyed and disposed of at the expense of the taxpayers of this province.

BCWF looks for positive solutions where there is a tolerance for each other’s views and opportunities. All hunters need to respect each other’s needs and continue to promote sustainable hunting. Commercial bear viewing needs to be properly regulated to avoid habituation and conflict with others. Those who choose not to hunt need to respect the cultural and traditional importance to those who do.

We wish to thank you for the opportunity to meet with you and Gary Wouters over the past few weeks to discuss management proposals for the North and Central Coast / Great Bear Rainforest. As agreed at our meeting on January 15th, we are responding in a timely fashion to the proposal from Coastal First Nations regarding land use management and bear hunting on the North and Central Coasts / Great Bear Rainforest as presented by you and Gary Wouters.

BC Wildlife Federation’s Board of Directors has carefully considered the proposal. Unfortunately, without sufficient information on what areas would be affected by varying levels of protection or how access and opportunity may be affected, we cannot render an informed decision at this time. We will require further mapping and harvest data in order to form a position that would be in the best interests of our membership and the residents of BC. BC Wildlife Federation has requested further information from the provincial government on this matter but has not received it as of this time.

We very much appreciate the opportunity these discussions have brought us. We have a better understanding of the dynamics surrounding this issue, Coastal First Nations cultural values, government responsibilities, and the interests and culture of non-first nation residents. It is our sincere desire to work towards resolution of this challenging issue through mutual appreciation of each other’s values.

Again we thank you for the opportunity to meet and we encourage further discussions with you regarding land use planning and shared values.

VANCOUVER: The Canadian Constitution Foundation (CCF) today released a position paper which challenges the validity of the federal government’s policy of recognizing “inherent” aboriginal self-government.

The position paper, Is “Inherent Aboriginal Self-Government” constitutional?, is posted Here:

The legal position paper argues that a constitutionally valid form of aboriginal self-government may be created through federal legislation that delegates government powers and authority to an aboriginal community. This has been done successfully with the Sechelt Indian Band Self-Government Act, the Yukon First Nation Self-Government Act, and the Cree-Naskapi (of Quebec) Act. The delegation of federal and provincial powers enables aboriginals to use municipal-style government to run their own affairs, exercise their aboriginal rights, and use aboriginal title lands.

“We are for aboriginal self-government, which can be achieved within Canada’s Constitution,” stated Jeffrey Rustand, author of the paper and in-house counsel with the Canadian Constitution Foundation.

“Aboriginal communities should govern their own affairs, and do so with a degree of autonomy comparable to municipal governments. That’s a lot more than what most Indian bands have right now under the Indian Act,” continued Rustand.

The CCF’s legal position paper explains that for more than a century, the Supreme Court of Canada has repeatedly and consistently declared that the Constitution distributes all legislative power between the federal and provincial governments. The only “inherent” government power in Canada is that which flows from Canadian sovereignty, referred to in law as Crown sovereignty. The federal and provincial orders of government are the only sovereign governments under the Constitution.

Since 1995, the federal government’s policy of recognizing “inherent” aboriginal self-government has resulted in the Nisga’a Final Agreement, the Tsawwassen First Nation Final Agreement and the Westbank First Nation Self-Government Agreement, all of which purport to create a “third order” of government that is outside of the Constitution, and not accountable to Canada’s federal or provincial orders of government.

This recognition of a “third order” of constitutionalized aboriginal government creates an uncertain legal environment for business, and for all citizens. Even if clear rules could be enacted for reconciling conflicting laws and authorities, the unwieldy complexity spells the end of functional government in Canada. The creation and imposition of new taxes and royalties on top of existing federal, provincial and municipal taxes will undoubtedly deter investment. Moreover, the federal and provincial capacity to enforce the law is necessarily reduced.

A “third order” of government hinders the federal and provincial governments’ ability to amend legislation for the purpose of accommodating changing circumstances and solving new problems which may arise. The legislation creating the “third order” of government found in the Nisga’a and Tsawwassen Agreements cannot be amended by Ottawa or Victoria like other legislation.

Most significantly, the recognition of “inherent” aboriginal government over Canadian territory constitutes withdrawal of Canadian government authority and law from that territory, an act known in constitutional law – and strictly prohibited by it – as abdication. The longer this federal policy remains in place, the more frequently Canadians will experience the violence and lawlessness which took place at Oka and Caledonia, and is currently taking place on Mohawk reserves along the border.

Here is an extract from a letter by John J.L. Hunter, counsel for British Columbia, to the Supreme Court of British Columbia, dated March 4, 2009:
“The province of British Columbia has been involved in a dialogue with first nations’ leadership for some time regarding the resolution of longstanding barriers to the reconciliation process . . .

Our client feels that it cannot continue with its productive discussions with first nations while it is at the same time taking a strictly legal position regarding the test for aboriginal title in this case.

As such, we are instructed that the province has determined it can take no position in upcoming closing arguments in the Ahousaht litigation.”
In other words, the government abandoned the case and declined to defend the claim for aboriginal title by the Ahousaht Indian Band and other plaintiffs to the seabed off Vancouver Island and to the marine resources in, on and above that seabed. In the result, the court did not address the claim for aboriginal title but only because it found that the plaintiffs had the aboriginal right to fish and sell fish (commercial fishing rights), and there was therefore no need to consider the aboriginal title claim.

This was risky conduct by Premier Gordon Campbell and his attorney-general. Typically, when a defendant fails to defend a claim in litigation the plaintiff gets what it claims. The plaintiffs claimed the seabed to a distance of 100 nautical miles from the shoreline of Vancouver Island along about two-thirds of its length. Such a judgment, on its own and as a precedent, could have thrown the commercial and recreational fisheries into turmoil all along the B.C. coast. Yet Campbell and the attorney-general, Michael de Jong, walked away from the trial without arguing a defense. It was left to Canada as the sole defendant still standing to carry the defense. The judgment came down on Nov. 3, 2009. Canada, but not British Columbia, has appealed.

Earlier in the year the premier sought to deem virtually all land in British Columbia to be aboriginal title land, meaning that “indigenous nations” would have been treated by the government as if they had proprietary title, meaning right of possession and ownership of resources, to almost all land in British Columbia. This initiative was the proposed Recognition and Reconciliation Act. This was so extreme that even the quiescent business community roused itself to protest. So extravagant and weird was the proposal that in the end even most aboriginal groups objected, thinking it was a trick. Fortunately, the initiative was stillborn because of these objections.

Has the premier found a new way to give away British Columbia? Aboriginal groups claim approximately 110 per cent of the province. Campbell may have hit upon a strategy to give the province away by simply letting the courts give it away piecemeal, on a case-by-case basis.

According to the Supreme Court of Canada, the test for aboriginal title is continuous and exclusive control over the claimed land by the aboriginal claimant, from when the Crown acquired sovereignty in British Columbia in 1846 through to the present. This is a rigorous test, and for good reason, since aboriginal title gives exclusive ownership over the land, including surface and subsurface resources. Applied in British Columbia, with appropriate defense evidence, the test would recognize aboriginal title to only a small percentage of the provincial land base. A very generous estimate would be about five per cent.

Yet the premier seems intent on giving far more than that away, up to the entire province, without legal basis. The premier and his attorney-general owe it to the people of this province to explain this new strategy of non-defense, and how refusing to defend the legal rights and economic interests of British Columbians is a rational and responsible course of conduct.

Jeffrey Rustand is in-house counsel with the Canadian Constitution Foundation